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TMI Blog2025 (4) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... quested the two mahazar witnesses to conduct personal search. The petitioner had crossed the Green Channel International Custom Arrival Hall Terminal-II at Kempegowda International Airport (In short KIA) Bengaluru. The respondent officials started checking the passport of passengers. After checking few passports, the respondent officials stopped the petitioner and requested her come to aside. Then, the respondent officials showed mahazar witnesses the passport of the petitioner, she was holding passport bg. No. Z8195849. Further, the officials informed the mahazar witness regarding name and address, ticket number of petitioner and flight number wherein she travelled. At that time, one protocol officer by name Basavaraj had also accompanied with the petitioner. 3. Initially, the respondent officials have checked bag and lady shoulder hand bag. The protocol officer was carrying bag grey coloured particular bag of ACURA Brand pertaining to the petitioner. On checking of both bags through scanner machine installed in the customers arrival area, the respondent officials have found nothing therein. 4. Thereafter, the respondent officials made inquiry with the petitioner regarding decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 102 of the Customs Act The respondent officials have not followed the guidelines/directions of the Hon'ble Supreme Court. The respondent officials requires serve arrest memo separately on the petitioner, as per the Circular of Customs Department. Therefore, it effects on the correctness and legality of the impugned Order. The procedure followed by the respondent officers at the time of arrest, it clearly discloses that the petitioner falsely implicated in this case. The petitioner is a lady (female) the provisions of section 480 of BNS Sanhita-2023 is applicable to case in hand. The alleged offence is not punishable with death or imprisonment for life. The grounds urged in remand application is base less. Further, the Trial Court failed to appreciate the contention taken by the petitioner regarding denial of the sleep, it affects the legality and credibility of placing reliance. The Trial Court misunderstood the Judgment of Hon'ble Supreme Court rendered in Radhika Agarwal's case. There is no prima-facie case. The learned Trial Court committed error. The petitioner is having influence over the witnesses and tamper the witnesses and documents, it is not correct. The petitioner is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. 11. The following Points arise for my consideration: 1. Whether the petitioner/accused is entitled for grant of bail.? 2. What Order.? 12. By considering the bail petition, objections and hearing of the rival parties, my answer to the above point is as under:- Point No. 1: In the negative Point No. 2: As per final order .............for the following. REASONS 13. Point No.1:- The learned counsel for the petitioner/accused submitted that, in this case, personal search of petitioner is not in accordance with law. Before conducting personal search, respondent official by name Smt. Neha Kumar was not disclosed her rank and her identity, in this regard no recitals in mahazar. Further, the arrest of the petitioner is not accordance with Circular issued by the Custom Department. According to the said Circular arrest memo, reasons to believe and grounds of the arrest, must be made separately. But in this case, they have done all three acts in one document. Therefore it is not in accordance with law. The learned counsel for the petitioner urged that in mahazar nowhere it is stated regarding the gold bars having foreign seal and there is no assayers statement. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, Directorate General of Goods and Services, Bangalore, passed by the High Court of Karnataka, Bangalore. 2025 SCC Online SC 449 Radhika Agarwal VS. Union of India & Ors. 17. As against this, the learned standing counsel for the respondent urged that the respondent officials have suspected the petitioner and conducted check on her bags and they have found nothing. Thereafter, they have complied all the guidelines laid down by the Hon'ble Supreme Court and their own Circular before conducting personal search of the petitioner. The search under section 50 of the NDPS and Search under section 135 of the Customs Act are totally different. 18. The respondent officials have issued notice to the petitioner on 03.03.2025 and informed her legal rights. Then, they have taken consent of the petitioner in writing. Then lady Gazetted Officer of DRI, Bengaluru. i.e., Smt. Neha Kumari conducted personal search of the petitioner in room of Customs Hall. Thereafter, she found that the petitioner was carrying 17 gold bars without declaring as per law. Thereafter, the respondent officials have conducted the mahazar and seized the gold. In that mahazar, they have categorically stated regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Power to search suspected persons in certain other cases.- (1) Without prejudice to the provisions of section 100, if an officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs], has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person. (2) The goods referred to in sub-section (1) are the following:- (a) gold; (b) diamonds; (c) manufactures of gold or diamonds; (d) watches; (e) any other class of goods which the Central Government may, by notification in the Official Gazette, specify. 102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate.- (1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate. (2) If such requisition is made, the officer of customs may detain the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceeds fifty lakh rupees. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) an offence punishable under section 135 relating to- (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under section 11 which are also notified under sub-clause (c) of clause (i) of sub-section (1) of section 135; or (c) import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore rupees; or (d) fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds fifty lakh 1 [rupees; or], shall be non-bailable. (e) fraudulently obtaining an instrument for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds fifty lakh rupees. (7) Save as otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding fifty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds fifty lakh of rupees; or with imprisonment for a term which may extend to seven years and with fine: (E) obtaining an instrument from any authority by fraud, collusion, willful misstatement or suppression of facts and such instrument has been utilised by any person, where the duty relatable to utilisation of the instrument exceeds fifty lakh rupees. Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both. (2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation stage. 23. In this case, the custom Department has issued guidelines for arrest and bail relating to offence punishable under Customs Act in Circular bg. No. CBEC Circular No.38, dated 17.09.2023, same are reiterated as under:- Circular No. 38/2013-Customs dated 17th September 2013 Subject -Guidelines for Arrest and Bail in relation to offences punishable under Customs Act, 1962-reg. Attention of the field formations is invited to the amendments to section 104 of the Customs Act, 1962 vide Finance Act, 2013 (with effect from 10.05.2013) whereby all offences are bailable other than the categories of offences punishable under section 135 of the Act ibid, which are classified as non-bailable. These are offences relating to: (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under section 11 of the Customs Act, 1962 (as amended) which are also notified under sub-clause (C) of clause (i) of sub-section (l) of section 135 of the Customs Act, 1962 (as amended); or (c) import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/goods covered under section 123 of Customs Act, 1962 with a view to import restricted or prohibited items and where the CIF value of the offending goods exceeds Rs. 50 lakh. 2.4 There is no prescribed format for arrest memo but an arrest memo must be in compliance with the directions in "D.K Basu vs. State of W.B." reported as 1997 (1) SCC 416 (see para 35). The arrest memo should include: (a) brief facts of the case; (b) details of the person arrested; (c) list of evidence against the person; (d) brelevant Section (s) of the Customs Act, 1962 or other laws attracted to the case and to the arrestee; (e) the grounds of arrest must be explained to arrestee and this fact noted in the arrest memo; (f) a nominated person (as per details provided by arrestee) of the arrestee should be informed immediately and this fact also may be mentioned in the arrest memo; (g) the date and time of arrest may be mentioned in the arrest memo and the arrest memo should be given to person arrested under proper acknowledgement; (h) a separate arrest memo has to be made and provided to each individual/arrestee. 2.5 Further, there are certain modalities that should be complied with at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 436 of Cr.PC. However, only in cases where the conditions for granting bail are not fulfilled, the arrestee shall be produced before the appropriate Magistrate without unnecessary delay and within twenty-four (24) hours of arrest. 3.3 Only in the event of circumstances preventing the production of the arrestee before a Magistrate without unnecessary delay, the arrestee may be handed over to nearest Police Station for his safe custody during night, under proper Challan, and produced before the Magistrate on the next day, and the nominated person of the arrestee may be also informed accordingly. 4. The guidelines issued vide F.No. 394/71/97-Cus (AS) dated 22.6.1999 (including the threshold limit specified at para 2.3) stand modified to the above extent. 5. Chief Commissioners/DGRI shall send a report on every arrest to the concerned Member within twenty-four (24) hours of the arrest. To maintain an all India record of arrests made under the Customs Act, 1962, a monthly report of all persons arrested in the Zone shall be sent by the Chief Commissioner to DRI (Hqrs) in the format prescribed and enclosed, by the 5th of the succeeding month and the same would be compiled and sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer of the DRI. Accordingly, the SIO has conducted personal search at Customs arrival hall of the KIA, Bengaluru. 29. In the course of arguments, the learned counsel for the petitioner heavily relied on section 50 of the NDPS Act. As against this, the learned counsel for the respondent relied on the Section 102 of Customs Act and submitted that there is slight difference between these two provisions. Therefore, this Court has relied on these provisions, it is reiterated for better appreciation. Sec 50 of NDPS Act. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. Sec 102 of Customs Act Persons to be searched may require to be taken before gazetted officer of customs or magistrate.- (1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of customs shall, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their possession" does not imply that a customs officer can conclude that an offence has been committed out of thin air or mere suspicion. The threshold for arrest under section 104 (1) of the Customs Act is higher than that under Section 41 of the Code, Section 41 allows the police to arrest a person without a warrant, if a "reasonable complaint has been made" or "credible information has been received, or " a reasonable suspicion exists" that the person has committed a cognizable offence. In contrast, section 104 (1) sets a higher threshold, stipulating that a customs officers may only arrest a person if they have "reasons to believe" that a person has committed an offence. A person is said to have a "reason to believe" a thing, if they have sufficient cause to believe that thing but not otherwise. This represents a more stringent standard than the "mere suspicion" threshold provided under Section 41. Para No. 44:- Thirdly, given the frame work of the Customs Act, which explicitly classifies offences into bailable and non-bailable as well as cognizable and non-cognizable, the "reasons to believe" must reflect these classifications when justifying an arrest. The reasoning mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. (underline by me, for emphases) 36. The learned standing Counsel for the respondent relied on another important document i.e., business of the petitioner and accused No.2 is based on Hawala Channel. It is serious offence. A people of Bharath are looking forward to put their Nation/Bharath in the 3rd Economic place in entire world. In such circumstances, if bail is granted to the petitioner, it gives wrong message to public at large and it will have an bad impact and convey wrong message to the society, as well as it gives wrong signal to the nation. By considering all these aspects, I am of the opinion that the petitioner is not entitled for grant of bail. Accordingly, Point No,1 is answered in the Negative. 37. Point No.2:-For the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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